Health Care on Appeal: Laurence Tribe Works the Refs (by Assuming That They Are Refs)

Constitutional law professor Laurence Tribe took to the New York Times op-ed page today to argue—or, ostensibly, explain—that the Obama administration’s health-care law is (translation:

ought to be


in no danger of being overturned

by the Supreme Court:

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut.

No need for an op-ed, then, right? But Tribe’s real point is to defend the existence of “constitutional law” at all. “[P]redictions of a partisan 5-4 split,” he writes, “rest on a misunderstanding of the court and the Constitution.”


widespread cynicism

is a mistake: the Supreme Court is not a political body, according to Tribe, despite the “impression” left by Bush v. Gore. That is, the op-ed is an attempt to lobby the court to back away from the unfortunate, “distressing” position of being misunderstood:

Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

And since the health-care law falls easily within the scope of existing commerce-clause precedent, it would be a failure of intellect and integrity for Scalia to vote against it. Even John Roberts and Samuel Alito, as Tribe construes the court, should be expected to defy the “crude prediction that justices will vote based on politics rather than principle.”

Only Clarence Thomas is out of reach, as Tribe sees it—and there, too, Thomas’ expected vote would testify to his integrity:

[H]e alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.

The whole essay is a quixotic effort not to be quixotic—to presume, for the sake of argument, that the Supreme Court still has an image and a purpose to protect, rather than a legislative agenda to advance. “There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty,” Tribe concludes. Unless, he means, they don’t.